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The death penalty is also known as Capital punishment is punishment by death for serious crime also known as the death penalty, it is official permission given by government whereby a person is killed by the state as a punishment for a crime. It is described as carrying out of a sentence of death to any individual who has found guilty for crimes. The term capital punishment stems from the Latin word capitalise meaning 'regarding the head' The humanitarian view of Capital punishment is the only one challenging the public opinion. People all over the world see as an unfair form of punishment. Some do not believe that human life should take by any reason because we are no one to do that, it is given by god. A more economic argument claims that execution is too expensive, and that is costs less money to keep a criminal confine that to put one to death. Some supporters of capital punishment argue that it is an excellent brake that will make potential criminals thinks twice before participating in any violent acts. These people believe in the concept of "an eye for an eye" and feel that every person who takes the life of another should lose their own too. They also contend that the cost of a single prosecution is for less than the cost of keeping a convict in prison for the duration of their life. Many countries and state have banned but still in some other location it is coordinated. One thing is certain as long as the death penalty is an option, it will continue to be a highly controversial topic to canvass.

In past 10decades the India judiciary has sentenced around 1,303 people to death but only four been hung till death in this entire decade. According to the article 21 of the constitution of India, "no person shall be deprived of his life or personal liberty except according to the procedure established by law" Capital punishment had always been a point of a heated disagreement in the judiciary, not only in India but also in most developed countries. The state's authority is both questioned and established often. The implementation of capital punishment in India has made its stance clear on the matter of death penalty in December 2007, when it rejected UN's plea for a punishment which was further in the face of India's stance on capital punishments, the judiciary saves it for extreme violations of law. In the past 10 decades, 1,303 people to death but only four have been hung till date in this entire decades


Date of execution: August 14, 2004 (Alipore central jail, Kolkata)


Date of execution: November 21, 2012 (Yerwada jail, Pune)


Date of execution: July 30, 2015 (central jail, Nagpur)

In China, they executed the most people per year overall, with an estimated figure of 1,717 in 2008, amnesty international also states that in 2008 Iran executed at least 346 people. The USA 111, Saudi Arabia 102 and Pakistan 36. Capital punishment is a legal penalty in India. It has been carried out in five instances since 1995, while a total of twenty-six executions have taken place in India since 1991, the most recent of which was in 2015.

The Supreme Court in Mithu v state of Punjab struck down section 303 of the Indian penal court, which provided for the mandatory death sentence for offenders who murdered while serving a life sentence – VENKATESAN V.C 7 September 2012. However, research by the people's union for civil liberties indicates the actual number of execution is much higher, as they located records of 1,422 executions in the decades from 1953 to 1963. Research published by national law university, Delhi. On death row convicts since 2000 had found that of the 1,617 prisoners sentenced to death by trail counts in India, capital punishment confirmed in only seventy-one cases. NLU Delhi confirmed 755 executions in India since 1947. National law university Delhi Examined, 1,414 prisoners who were executed, in the available list of convicts hanged in post-independence since 1947. According to a report of the law commission of India (1967), the total number of cases in which the death sentence was awarded in India from 1953-63 was 1410 –data on death penalty convicts goes missing. In December 2007, India voted against a united nation general assembly resolution calling for a moratorium on the death penalty. In November 2012, India again held its stance on capital punishment by voting against the UN general assembly draft resolution seeking to end the institution of capital punishment globally. On 31 August 2015, the law commission of India submitted a report to the government which recommended the abolition of capital punishment for all crimes in India, excepting the crime of waging war against the nation or for terrorism-related offences. The report cited several factors to justify abolishing the death penalty, including its arbitrary and flawed application and its lacks of any person deterring effects on criminals.

In Current Scenario Rape case of children had reported more than doubled in India between 2012 and 2016. The Indian cabinet has approved the introduction of the death penalty for those who rape children. The change in country penal code applies to those convicted who rape children under the age of 12. All this has come to prevent sexual-assault cases, many involving children.

What is the new law? The executive order was cleared at a special cabinet meeting chaired by Prime Minister Narendra Damodardas Modi. It allows capital punishment for anyone convicted of raping children under the age of 12. A minimum prison sentence of rape has raised against girls under the age of 16 and women. According to Reuters, which has seen a copy of other order, there was no mention of boys or men.

Why now? Past two rape cases have shocked the nation. Protests flare-up earlier this month after police released horrific details of the rape of an eight-year-old Muslim girl by Hindu men in Kathua, in India administered Kashmir in January. Anger was mounted by members of governing Bhartiya Janta Party (BJP) was accused a few months back over rape of a 16-year-old girl in northern Uttar Pradesh. India's has a poor record of dealing with sexual violence came to the fore after the 2012 gang rape and murder of a student on a Delhi bus. It led to protests and changes to the country's rape laws which were necessary.

Enforcement is carried out in India with just three recorded in the last decades. The four men were convicted in the Delhi bus case was sentenced to death, though this has not yet carried out. The judge of this case said that this case should fell into "The Rarest of rare category" which Justify capital punishment in India. According to Hindustan Times, India penal code had already prescribed the death for gang rape. Hanging is the method of execution. A man convicted of financing the deadly 1993 Mumbai bombings was the last person to be hunged in India in 2015.

Rarest of Rare is the principal as to what would constitute the rarest of rare has been laid down by the top court in the landmark judgement in Maneka Gandhi v union India. The supreme court of India has ruled that the death penalty can be awarded only in the special case. It's the punishment which will be imposed on special reasons only by the high court. The five-judge bench in Bachan Singh v State of Punjab laid down the caution of rarest of rare. Justice R Sarkaria speaking for the majority held that for convicts of murder, the general rule is life imprisonment of whose death penalty is an exception. An enduring and predominant concern for the dignity of human life postulates resistance to taking a life through law's instrumentality, "that ought not to be saved in the rarest of rare cases when the alternative option unquestionably foreclosed.

Mercy powers are thus a safeguard and necessary precondition for the death penalty. The exercise of mercy powers under Article 72 and 161 have failed in acting as the final safeguard against the miscarriage of justice in the imposition of the death sentence. If the Supreme Court turns down the appeal punishment, a condemned prisoner can submit a mercy petition. The president of India and the government of the state under article 72 and 161 of the constitution, the president and government respectively have the power “to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence”.

There are following factors which use to deciding mercy petition.

  • The personality of the convict such as age, sex or mental deficiency or circumstance of the case such as provocation or similar justification.

  • Has the appellate court expressed doubt on the reliability of evidence but has nevertheless decided on convicted.

  • Is it alleged that fresh evidence is obtainable, mainly to see whether the fresh inquiry is justified or not?

  • Has the high court, on appeal, reversed exoneration or has it, on the petition, enhanced the sentence.

  • Is there any difference of opinion in the bench of judges in the high court, necessitating reference to a third Judge

  • Was there evidence suitably considered in fixing responsibility, if it was a gang murder case.

  • If there any delays in the investigation and the trail.

If the answer is yes to even one of these grounds, then the president found it reasonable to grant clemency.

However, when the actual exercises of the ministry of home affairs are analysed. It seems that many times these guidelines have not adhered to writ courts in numerous cases have examined how the executive has considered mercy petitions. The Supreme Court part of the batch matter Shatrughan Chauhan case heard 11 writ petitions by the executive.

Supreme Court last year held that judicial clemency could be granted on the ground of inordinate delay even after a mercy petition rejected.

By Ms. Neeati Jha, Legal Intern at S.Bhambri & Associates (Advocates), Delhi.

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